Volume 09, Number 12, May 1988

ENTERTAINMENT LAW REPORTER RECENT CASES Paramount Pictures is not entitled to include copy- righted song in videocassettes of "Medium Cool" be- cause synchronization license authorized song's use only for theatrical and television exhibition A synchronization license granting H&J Pictures the right to use the song "Merry-Go-Round" in the film "Medium Cool" and to exhibit the film in theaters and television did not include the right to use the song in videocassettes of the film, a Federal Court of Appeals has held. Herbert Cohen, the copyright holder in the song, which was written by Larry ("Wildman") Fischer, granted the synchronization license to H&J in 1969. Subsequently, H&J assigned its rights, title and interest in "Medium VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER Cool" to Paramount Pictures. Paramount eventually manufactured and sold about 2700 videocassettes of the film, receiving a gross revenue of about $69,000 from the sales. When Cohen sued Paramount for copyright infringe- ment, the District Court granted Paramount's motion for summary judgment. In reversing the District Court's decision, Judge Proctor Hug set forth the relevant language of the license, which began by granting H&J the "authority ... to record, in any manner, medium, form or language, the words and music of the musical composition ... with ['Medium Cool'], all in accordance with the terms, conditions, and limitations hereinafter set forth ... " Paragraph 4 of the license stated, "The ... license herein granted to perform ... said musical composition is granted for: (a) The exhibition of said motion picture ... to audiences in motion picture theaters ... (b) The exhibition of said motion picture ... by means of television VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER ..., including 'pay television,' 'subscription television' and 'closed circuit into homes' television..." And in paragraph 6, the license reserved to the grantor "all rights and uses in and to said musical composition, except those herein granted to the Licensee ... " Paramount argued that the right to use the composition in connection with a videocassette reproduction of "Me- dium Cool" was conferred by the language granting H&J the authority to record "in any manner, medium, form or language" the composition with the film. The grant was expressly subject to the limitations set forth in the license, noted Judge Hug. The court next rejected the argument that videocassette display was equivalent to "exhibition ... by means of television." It was observed that the exhibition of a film on television differs fundamentally from exhibition by means of a videocassette recorder-television requires an intermediary network, station, or cable to send signals VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER into viewers' homes; viewers using a conventional television set cannot record any part of the television display; and television signals are "ephemeral and beyond the viewer's grasp." On the other hand, viewers have complete discretion with respect to videocassettes. Furthermore, a primary reason why the phrase "exhibition by means of television" did not include videocassette reproduction was that videocassette recorders for home use were not invented or known in 1969, when the license was executed. Cohen anticipated that viewer ac- cess to the film would be controlled by theaters and net- works. H&J could not have bargained for, or paid for, the rights associated with videocassette reproduction, declared Judge Hug, and thus was not entitled to "reap the entire windfall" associated with the new medium, particularly since paragraph 6 of the license precluded uses not then known to, or contemplated by the parties. VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER Judge Hug went on to find that the purposes underlying federal copyright law would not be served were the court to construe the license as granting a right in a medium which was not available at the time the license was granted. The court distinguished the case of Platinum Record Company, Inc. v. Lucasfilm, Ltd., 556 F.Supp. 226 (ELR 6:1:8), in which the license granting Lucasfilm the right to use four songs on the soundtrack of the film "American Graffiti" expressly included the right to "exhibit, distribute, exploit, market and perform said motion pictures, its air, screen and television trailers, perpetu- ally throughout the world by any means or methods now or hereafter known." (Emphasis added.) Also distinguished was Rooney v. Columbia Pictures Industries, Inc., 538 F.Supp. 211 (ELR 4:7:5) aff'd, 714 F.2d 117, cert.denied, 460 U.S.1084, in which the contracts at VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER issue, like the contract in Platinum, contained "sweeping language" in granting rights to exhibit certain films. Cohen v. Paramount Pictures Corp., Case No.87-6093 (9th Cir., April 27, 1988) [ELR 9:12:3] ____________________ Gore Vidal agrees to settle litigation arising from Writers Guild arbitration concerning screenplay credit for "The Sicilian;" one week after settlement, California appellate court upholds trial court ruling ordering Guild to disclose names of arbitrators A California appellate court has ruled that the Writers Guild of America, West, Inc. must reveal the names of the three arbitrators who determined that Steve Shagan, rather than Gore Vidal, was entitled to a screenplay credit for the film "The Sicilian." VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER Judge Mildred L. Lillie noted that Vidal, Shagan and the film's director, Michael Cimino, participated in writing the screenplay for the film, which was based on a novel written by Mario Puzo. In October 1986, Gladden Entertainment informed the Guild that principal photog- raphy on the film was completed and requested the Guild to conduct a credit determination. The general rules of credit determination and advertis- ing of credits are set forth in the Guild's collective bar- gaining agreement with employers. The procedures for arbitrating credit disputes appear in the Guild's "Credits Manual;" the manual is not part of the collective bar- gaining agreement, but has been approved by the Guild's board of directors and membership. The credits manual provides that the arbitrators may receive written scripts and written statements from each participant. A credit arbitration secretary then formu- lates a statement of the issues to be determined, and VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER each arbitrator issues a decision, apparently, observed Judge Lillie, without consulting with the other arbitrators. A "credit consultant" is available to the arbitrators for information on policy, rules and procedures and is expected to "aid the [arbitrators] toward a majority decision" The credit arbitration secretary obtains the decision of each arbitrator, and, if the decision is not unanimous, accepts the majority decision as final. On December 31, 1986, each of the three arbitrators decided that Shagan was entitied to a sole screenplay credit. The decision was confirmed by a Policy Review Board; the Board considers whether, in the course of the credit arbitration, there has been "any serious deviation from the policy of the Guild" or the credit manual procedures, and usually will review issues such as "dereliction of duty of the arbitrators, undue influence on the arbitrators, the arbitrators' misinterpretation or violation of Guild policy, and the existence of important new written VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER material previously not available to the arbitrators" The Board may direct the original arbitrators to reconsider the matter, or direct the arbitration secretary to form a new panel. In February 1987, Vidal sought to vacate the arbitration award, alleging that he still was rewriting the film and was its primary, albeit not first, author. Vidal also claimed that the arbitrators failed to follow Guild rules by not considering the "qualitative significance" of the various writers; that in view of the ongoing rewriting and editing of the film, the contributions of the writers would change, most likely with an increased use of Vidal's work; that the Guild did not consider the material that was included in the film at the time of the arbitration; and that the premature determination of credit was due to pressure by Shagan, an active Guild member. Vidal further alleged that the arbitration award was procured by fraud and mistake; that an outline for the VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER film was withheld from the arbitrators, and that the outline would have demonstrated that Shagan's contributions to the screenplay was less than represented to the arbitrators; that Shagan's name was misleadingly placed on the cover page of the final screenplay; that Vidal's name was deleted from early drafts and that those drafts were not given to the arbitrators; that the arbitrators were partial and biased in favor of Shagan; and that there were improper contacts and communications (by unspecified parties) with the arbitrators. The Guild and Shagan, in addition to denying Vidal's allegations, asserted that the complaint was barred be- cause Vidal did not pursue intraunion remedies. In interrogatories sent to the Guild, Vidal sought to discover the names of the arbitrators who participated in determining the writing credit for "The Sicilian" Vidal asserted that the arbitrators would be crucial witnesses to the issues of improper contacts, bias, misconduct or VOLUME 9, NUMBER 12, MAY 1988 ENTERTAINMENT LAW REPORTER fraud with respect to the documents submitted to them. When the Guild objected to the interrogatory, Vidal filed a motion to compel an answer. The trial court, in September 1987, denied the motion. However, upon reconsideration, Judge Miriam Vogel granted the motion to compel (ELR 9:8:18), stating that she had been under the misimpression that the arbitration rules were written.

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